FEDERAL COURT OF AUSTRALIA

Neowarra v State of Western Australia [2003] FCA 1401

PADDY NEOWARRA, PADDY WAMA & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS

WAG 6016 OF 1996

WAG 6015 OF 1999

WAG 6006 OF 2002

SUNDBERG J

8 DECEMBER 2003

MELBOURNE

THE COURT ORDERS THAT the applicants have leave further to amend their Amended Statement of Issues, Facts and Contentions in the manner appearing in the Amended Statement of Issues, Facts and Contentions dated 5 February 2003 with the modifications listed in paragraph 19 of the Reasons for Judgment herein.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     By notice of motion filed on 28 January 2003 the applicants seek leave to amend their Statement of Issues, Facts and Contentions so that it will assume the form of the Amended Statement of Issues, Facts and Contentions dated 5 February 2003. Other relief was sought, which was granted on 3 and 4 February 2003 when the motion was heard.

2                     The evidence in the case concluded on 7 June 2002. The hearing was then adjourned to 3 February 2003 for closing submissions to be made between then and 6 February 2003. On the resumption of the hearing the application to amend was heard. After extensive argument many of the amendments were not opposed by the respondents. This ruling deals with those that were opposed.

3                     First, the applicants seek to amend paragraph 22, which contains a list of facts said to support the contention in paragraph 21 that the laws acknowledged and the customs observed by the claimants are traditional. The amendment would add to a list of particulars of what they call their distinctive, shared body of beliefs, social and cultural traits and affinities that bind them together and differentiate them from neighbouring regions, particular (e)(ix) – the existence of “a distinctive form of marriage called patrilateral cross cousin marriage”. This amendment was opposed on the ground, using the words of counsel for the Group 2A respondents:

“Quite frankly I don’t know what a patri‑lateral cross cousin marriage is. If I had known about it, I may have asked some questions about it. It’s a little difficult to see that something that we simply can’t understand at this stage can be inserted.”

In fact the term is the subject of detailed discussion in paragraphs 183 to 187 of the Joint Rumsey/Redmond Report that had been filed in December 1999. I will allow the amendment.

4                     Secondly, the applicants want to amend paragraph 32 in the manner indicated by the underlining:

“Recognition of the native title as being held by the Wanjina Wunggurr community as a right of possession, occupation, use and enjoyment of the claim area as against the whole world involves an acknowledgment that the native title has ‘internal’ dimensions being, that, it includes both:

(a)          rights and interests as between the members of the native title claim group in relation to various parts of and places on the claim area; and

(b)          particular rights and interests that are encapsulated in the generality of the right as described,

including, respectively:

(ca)   the entitlement of the claimants to do all of those things in relation to land and waters that they are permitted or required to do respectively as individuals, as groups or as a community under the traditional laws acknowledged and traditional customs observed by them; and

(db)   the entitlement of the claimants as individuals, as groups and as a community respectively to do all of those things that are permitted by reason of their having, as common law holders, having a ‘right of possession, occupation, use and enjoyment against the whole world’.”

The objection to the insertion of (a) and (b) is based in part on the open endedness involved in the words “that is, it includes both” and “including, respectively”. As I understand it, the applicants are prepared to avoid this problem by deleting both passages. The second objection to the amendment is that it is “rolled up” with the alternative case sought to be put in proposed paragraphs 32A and 32B. I will return to this aspect of paragraph 32 after I have considered those later paragraphs.

5                     Thirdly, the applicants seek to insert new paragraphs 32A and 32B as follows:

“32A      Recognition of the native title as being held by the Wanjina Wunggurr community as a set of rights and interests less generally described than in paragraph 25 above, involves an acknowledgment that the native title has ‘internal’ dimensions, that is, it includes both:

(a)        rights and interests as between the members of the native title claim group in relation to various parts of and places on the claim area; and

(b)        particular rights and interests that are encapsulated in the generality of the right as described.

32B        If it be necessary (contrary to Applicants’ contentions) to identify any of the internal dimensions referred to in paragraphs 32 and 32A above, then:

(a)        in so far as it is necessary to identify less inclusive groups, kinds of less inclusive groups, or individuals (in any such case, as having a particular kind of connection to a particular area or kind of area or place) within the Wanjina Wunggurr community, such less inclusive groups or kinds of groups, or individuals may be identified by reference to:

(i)            the labels referred to in paragraph 24(h), namely by reference to language affiliation;

(ii)          by reference to moiety affiliation as referred to in paragraph 22(e)(vi) above, namely by reference to the labels Wodoy and Jun.gun;

(iii)        groups of persons having inherited links to named areas referred to in paragraphs 22(e)(iv) and (v) and 24(k) above and 38(c)‑(e) below, that is, by reference to dambun or clan estate affiliation;

(iv)        groups of persons comprising the members of groups of dambun closely related by kinship (including the dambun of actual marriage partners) as referred to in paragraph 38(f) below;

(v)          groups of persons comprising the members of groups of dambun having the same moiety affiliation as referred to in paragraph 38(g) below;

(vi)        groups of persons comprising the members of groups of dambun having the same language affiliation as referred to in paragraph 38(ga) below;

(vii)      groups of persons comprising the members of groups of dambun being adjacent along a route of the wurnan system as referred to in paragraph 22(e)(viii) above and 38(h) below;

(viii)    persons whose spiritual conception is associated with a place on the claim area as referred to at 22(e)(iii) above and 38(i)(i) below, that is, by reference to wunggurr places;

(b)        in so far as it is necessary to identify less inclusive areas or places within the claim area, or kinds of such less inclusive areas or places, such less inclusive areas or places or kind of areas or places may be identified by reference to:

(i)            the labels referred to in paragraph 24(h) and (k), namely by reference to language affiliation;

(ii)          moiety affiliation as referred to in paragraph 22(e)(vi) above, namely by reference to the labels Wodoy and Jun.gun;

(iii)        named areas referred to in paragraphs 22(e)(iv) and (v) and 24(k) above and 38(c)‑(e) below, that is, by reference to dambun or clan estates;

(iv)        areas of groups of such dambun closely related by kinship (including the dambun of actual marriage partners) as referred to in paragraph 38(f) below;

(v)          areas of groups of such dambun having the same moiety affiliation as referred to in paragraph 38(g) below;

(vi)        areas of groups of such dambun having the same language affiliation as referred to in paragraph 38(ga) below;

(vii)      areas of groups of such dambun being adjacent along a route of the wurnan system as referred to in paragraph 22(e)(viii) above and 38(h) below;

(viii)    places on the claim area associated with the spiritual conception of persons as referred to at 22(e)(iii) and 24(k) above and 38(i)(i), that is, by reference to wunggurr places and the dambun within which such places are located;

(c)         in so far as it is necessary to identify less inclusive rights and interests or kinds of less inclusive rights and interests than the right referred to in paragraph 25 above, such less inclusive rights or interests or kinds of less inclusive rights or interests may be identified by reference to such of the descriptions of rights set out at paragraph 22(h)(ii)‑(xxiv) above and at 38(e) and 36(c)‑(f) and (h) below, and by reference to such of the activities as are referred to in paragraph 22(g) above (other than sub‑paragraph (g)(xii) and (xiii)) as is necessary for the purpose or to less inclusive descriptions if necessary for the purpose.”

6                     As paragraphs 32A makes clear, the applicants seek now to make an alternative case to that pleaded in paragraph 25, which reads:

“The native title of the claimants in relation to the land and waters of the claim area is a communal native title that confers on the members of the native title claim group for their respective communal, group and individual rights and interests, the right of possession, occupation, use and enjoyment of the claim area as against the whole world.”

The members of “native title claim group” are described in paragraph 3 as “the members of the Wanjina‑Wunggurr community”.They make a communal or regional claim and not a language based or dambun based claim. The case was opened on that basis, and counsel explained why a regional, as opposed to a language or dambun based case, was propounded. On several occasions in opening he said that a determination at a level lower than the regional level “would not protect native title and indeed would ultimately kill it”.

7                     The basis of the respondents’ objection is that the effect of the proposed amendments (paragraphs 32, 32A 32B and a number of later amendments said to be consequential on them) is to introduce a new case that, until now, the applicants positively denied they were propounding. The State’s anthropological reports, prepared by Professor Sansom, claim that the members of the Wanjina Wunggurr community are not the proper holders of the native title claimed. Rather, he maintains that the claim should be language based (as in a Ngarinyin claim, a Wunambal claim or a Worrorra claim) or dambun based. Professor Sansom says the Wanjina Wunggurr community is an anthropological construct, and does not exist in real life. The respondents see the amendments as a belated attempt to plead as an alternative to their community‑based case the “language” and “dambun” cases they had thus far so distinctly spurned. Thus counsel for the State submitted in relation to paragraph 32B (T7005‑7006):

“we have a whole new way of looking at the claim. Rather than this community model that has been put forward, we then have a whole host of possibilities of less inclusive models, none of which were pleaded or none of which were revealed to the applicants as being potentially groups holding Native Title over particular areas of land.

…

Now, all of these are aspects of traditional law and custom of which we were aware and of which all parties were aware, but no one ever suggested that these were groupings, some less exclusive kind of groupings which held Native Title to particular area or areas ….

In effect, what has happened is that the applicants have looked at the evidence and I think somewhat with dismay and have realised that they have actually pleaded their case in a way that doesn’t suit the evidence at all, and that if perhaps more thought had been given to it that perhaps one or other of these less inclusive models would have been the way the matter would have been pleaded and would have been run.

But unfortunately, the evidence is in and it’s in in circumstances where the respondents have not had an opportunity to know that the evidence was going to be said to establish these particular entitlements, and accordingly have simply not had any opportunity to assess the evidence or to object to evidence or to cross‑examine on evidence on the basis that this was the case that would at some stage be put.”

Indeed counsel had earlier said (T7004):

“rather than testing this particular case, in many cases we, in fact, helped it along because it was not the case the applicants were putting.”

8                     Counsel for the Group 2A respondents made submissions to the same general effect (T7009):

“your Honour might recall that at opening there was some detail or certain detailed submissions put by me, your Honour, in relation to this matter, that is the understanding of the Group 2A respondents that the case being put against us was as to the existence of a Native Title group that comprised a cultural domain, and that that was the definition of the group which asserted Native Title.

Now, it has been clear all along, your Honour, that there was an alternative or various alternative bases for expressing the definition of the group. One had only to read Professor Sansom’s report which set another alternative or explication of that out in some detail. That has all been known to the applicants since opening ‑ in fact before opening ‑ and they, your Honour, have quite deliberately put their case in the way that they have, that is that the group comprises the Wanjina Wunggurr community or cultural bloc or domain.

To now, your Honour, when they have had the advantage of all of the evidence ‑ and I understand my friend to be saying this, ‘Now that we’ve heard all of the evidence we think we want to put it an alternative way’. Well, it’s simply too late, your Honour. We have not addressed this case on any basis other than that we were meeting a case that the group was the cultural bloc or domain, and your Honour, we would be severely prejudiced if that amendment was allowed.”

Counsel for Sunlight Holdings adopted the submissions made by the State and the Group 2A respondents. Counsel for WAFIC drew attention to a passage in his cross‑examination of Dr Rumsey, and went on (T7011):

“That, sir, was a full frontal attack by me on the case of the applicants as it then stood. It would have been conducted in rather a different way had the case been put that what I was examining on was friendly, so to speak. The case now put is supported by that cross-examination; the case then put was not.”

9                     As I understood the applicants’ explanation of the point of the amendments, they were not seeking to put the alternative case posited by the respondents. The real point can I think be divined from submissions initially made about amendments to paragraphs 25B and 25C, which some of the respondents did not oppose (T7276):

“they are a general description of the alternative case. Your Honour, the concept of an alternative case in Native Title has this difficulty: that your Honour’s inquiries are in a number of stages, your Honour. Your Honour has to look at the evidence for the purposes of section 223, for the purpose of section 223(1)(c), in other words, dealing with extinguishment, and again for the purpose of section 225. So, what is ‑ so it’s not ‑ the applicants will say it’s not so much an alternative case, it’s really uncovering and exposing all of the detail which your Honour will need to deal with to escape from some ‑ from Ward‑like behaviour or some behaviour which the High Court was concerned with in Ward.”

Counsel then referred to paragraphs 32A, 32B and 36, and continued (T7279):

“your Honour ought always bear in mind that [the Statement of Issues] in its initial form was prepared under orders which required the statement of issues, facts and contentions in relation to the establishment of Native Title apart from questions of extinguishment, but as a matter of convenience at this stage of the case it’s sought to put before your Honour in one document what the applicants say not only is their Native Title as they seek it at its highest level but also what they realistically acknowledge ‑ well, what they have to acknowledge that that kind of Native Title cannot survive the various kinds of acts which affect it which are involved in this case.”

10                  Paragraph 32A does not fit the description the respondents seek to impose on it. The native title it describes is “held by the Wanjina Wunggurr community”, not by any smaller language or dambun group. When paragraph 32A purports to describe a “set of rights and interests less generally described than in paragraph 25”, it is breaking the general right in paragraph 25 into its component parts. It is concerned not with the persons who hold the native title, but with what is involved in the Wanjina Wunggurr community holding it –who can do what and in respect of what part of the claim area. The notion of “internal dimensions” of native title is not new. It was in paragraph 32 before the proposed amendment. The first of the new “dimensions” sought to be introduced into paragraph 32 (which are repeated in paragraph 32A) is merely an explication of what had formerly been sub‑paragraph (a) and would become sub‑paragraph (c). The former sub‑paragraph (a) dealt with what traditional law permitted or required the claimants, as individuals, groups or as a community, to do in the claim area. The new sub‑paragraph (a) makes more clear that various things the claimants as individuals, groups or as a community are permitted or required to do, may be done in different parts of the claim area. It has always been the applicants’ case, though not properly understood by all involved (including Professor Sansom), that not every member of the claimant group asserts the same rights and interests as every other member. See paragraph 36(c). In particular, some claim rights in relation to some areas and others in relation to other areas. New paragraph 32(b) is but a restatement, in different words, of what had been in the original sub‑paragraph (b) and will still be in sub‑paragraph (d). The breaking down into its component parts of the general proprietary description in paragraph 25 – “the right of possession, occupation, use and enjoyment of the claim area as against the whole world” – is not new. First, it has always been in the Statement (as the original paragraph 32(b)). Secondly, throughout the case the applicants have stressed that while they claim an ownership type native title, it would be necessary to unbundle the general right into its component parts in order to determine the extent of any inconsistency with competing interests.

11                  Paragraph 32B particularises the internal dimensions that have been referred to in paragraphs 32 and 32A under three headings. In sub‑paragraph (a) it specifies the types of groups or persons who may have rights and interests in relation to various parts of the claim area. In sub‑paragraph (b) it specifies the parts of the claim area in respect of which people or groups may have rights and interests. In sub‑paragraph (c) it again breaks down the general right in paragraph 25 into its component parts. There is nothing in paragraph 32B which mounts an alternative case that the native title the Court is asked to find is to reside in anything other than the Wanjina Wunggurr community, in particular in members of a language group or dambun.

12                  A number of mainly consequential objections were made to later paragraphs of the Statement the applicants wish to amend. Most of them fall away once paragraphs 32, 32A and 32B are allowed to stand. The applicants seek to amend paragraph 36(c). At present it states that the claimants’ entitlements are not all held or shared equally by all claimants in relation to the whole of the claim area “but are variously possessed” by them. The amendment seeks to add after “possessed” the words “in relation to the various parts, areas, and places of the claim area”. The objection is based on a supposed connection with pars 32A and 32B. The objection evaporates when those paragraphs are found unobjectionable. In any event the words add nothing to the paragraph. They are implicit in the paragraph in its present form. That is made unmistakable by the examples given in sub‑paragraphs (d) and (da).

13                  Paragraph 36(da) currently states that the claimants’ laws and customs give prominence to dambun or clan countries, and to the relationship to such sub‑areas particularly of a person having an inherited link through his or her father. It is sought to add the sentence “Clan members have primary and direct rights in relation to the claim country, including a right to exclude or control the access of strangers”. The addition will not take the respondents by surprise. It is mentioned in the Joint Rumsey/Redmond Report which has been in their possession since December 1999. It was mentioned in the applicants’ opening in May 2001, and it was the subject of a great deal of uncontroversial evidence.

14                  Paragraph 36(db), as sought to be inserted, is as follows;

“Members of clans whose countries have particular kinship relationships to another clan country have particular rights and interests in relation to that clan country depending upon the nature of the kinship relationship, and some of them may have or come to acquire direct or primary rights by way of processes of succession in the event of the death of the last member of that other clan. Similarly, members of clans having the same moiety affiliation, and again members of clans having countries of the same language affiliation, have particular rights in the other clan countries having those affiliations. Again, members of the claimant group have particular rights in relation to the clan country of particular kin. And a member of the claimant group has particular rights in relation to their ‘Wunggurr place’ and the clan country in which that place is situated.”

This will not take the respondents by surprise. These indirect or secondary rights in relation to clans other than one’s own were mentioned in the applicants’ opening. Most of them appear in the Preface to the Joint Report (pars 31 to 34), and in the applicants’ Outline of Case filed in accordance with the Court’s orders in December 1999 (pars 19 to 22 and 25).

15                  Paragraph 36(e) currently states that the entitlements of the Wanjina Wunggurr community as a whole include the entitlement to resolve disputes in relation to the claim area and to control knowledge associated with the Cultural Domain. It is sought to add thereto the following:

“and, as a community, in relation to matters involving the whole of the claim area or matters involving land and waters within the claim area on which is located a site that is central to the traditional laws and customs of the Wanjina Wunggurr Community (for example in relation to a matter involving a threat to the place Wanalirri), the entitlement to possession, occupation, use and enjoyment respectively of the claim area and such a site as against the whole world.”

This aspect of the applicants’ case was mentioned in their opening, where it was said:

“everybody has some kind of interest in the whole region which may be illustrated, for example, in the context if there was likely to be any damage to create a development on some of the sites which are central to the cultural domain, in other words, say the Wanalirri site.”

This characteristic of Wanalirri was mentioned by many witnesses, and was not a controversial topic. It is considered in the Joint Report at paragraphs 312, 314, 347 and 362.

16                  Paragraph 36(f) and (h) pick up the contents of paragraphs 32 and 32A, and nothing more need be said about them. Paragraph 37 is sought to be amended in the manner indicated by underlining:

“The members of the claimants group individually, collectively in various groupings and as a community, by thetraditional laws they acknowledge and the traditional customs they observe, have a connection with the claim area.”

These additions do no more than make the language of the paragraph consistent with that of paragraph 25 and paragraph 32(a) and (b) in their original form.

17                  Paragraph 37A is to be inserted:

“That connection includes historic, ancestral, social, physical, ritual, spiritual, traditional and economic connections.”

This is a direct quotation from paragraph 12 of the applicants’ “Brief Summary Points of Claim” filed on 7 May 2001.

18                  Paragraph 38 is to be amended by inserting a reference to paragraph 37A. Paragraph 38(a) is to be amended by inserting a reference to the facts in paragraph 36(a) to (e). Paragraph 38(f), (g) and (ga) were objected to solely because of their association with paragraph 32A. None of them seems to me to have that association. However, if they do, that does not render them vicious. There was a faint objection to the amendment sought to be made to paragraph 38(k) on the ground of a possible connection with paragraph 32A. What I have said in relation to sub‑paragraphs (f), (g) and (ga) applies to (k).

19                  The applicants will have leave further to amend the Amended Statement in accordance with the document dated 5 February 2003 save for the following changes:

(a)           paragraph 25B – the words “(other than sub‑paragraph 22(g)(xii) and (xiii))” should be inserted after “22(g) above” in the last line

(b)          paragraph 25C – the words “(other than sub‑paragraph 22(g)(xii) and (xiii))” should be inserted after “22(g) above” in the second last line

(c)           paragraph 32 – the words “, that is, it includes both” in the fourth line should be deleted, and the words “including, respectively:” in the ninth line should be deleted

(d)          paragraph 32A – the words “that is, it includes both” in the third and fourth lines should be deleted and be replaced by “namely”

(e)           paragraph 32B(c) – the words “(other than sub‑paragraph 22(g)(xii) and (xiii))” should be inserted after “22(g) above” in the second last line

(f)            paragraph 36 – the bracketed passage in the second and third lines should be deleted

(g)           paragraph 36(f) – “32(a) and (b)” should be replaced by “32A(a) and (b)”

(h)           paragraph 36(h) – “32(a) and (b)” should be replaced by “32A(a) and (b)”

(i)             paragraph 36(i) – the words “(other than sub‑paragraph 22(g)(xii) and (xiii))” should be inserted after “22(g) above”.

20                  The applicants, correctly in my view, considered they should seek leave to amend the Statement, even though it is not strictly a pleading. The Statement was filed pursuant to an order of the Court and was intended to, and did, govern the way the applicants’ case was put. It had earlier been amended by leave. The case was conducted in accordance with the Statement and not in accordance with the Applications, which in themselves are not particularly informative or helpful documents.

21                  For the avoidance of doubt, and by way of partial summary of what I have said, the leave to make the amendments sought in the motion

·                enables the applicants to unbundle the general right of possession, occupation, use and enjoyment of the claim area as against the whole world into its component parts, so that they will not be at risk of losing the general right in the course of the extinguishment enquiry and having no other more specific rights to rely on

·                does not enable the applicants to mount a case that any native title they establish is held by anyone other than the members of the Wanjina Wunggurr community.

Associate:

Dated:              8 December 2003